Davis v. McKinney

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 21, 2008

No. 07-20184 Charles R. Fulbruge III

Clerk

CYNTHIA M. DAVIS

Plaintiff - Appellee

v.

MICHAEL McKINNEY, M.D., Being Sued Individually and In His Official

Capacity; and CHARLES G. CHAFFIN, Being Sued Individually and In His

Official Capacity,

Defendants-Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, STEWART and OWEN, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendants Michael McKinney and Charles Chaffin bring this

interlocutory appeal challenging the denial of their summary judgment motion

seeking dismissal based on qualified immunity from plaintiff Cynthia Davis’ §

1983 suit for retaliatory discharge in violation of the First Amendment. For the

reasons set forth below, we affirm in part, reverse in part and remand to the

district court for further proceedings.

No. 07-20184

I.

Davis filed this suit against the above named defendants and the several

arms of the University of Texas (“UT”) System. Prior to December 2003, Davis

was the IS Audit Manager at the UT Health Science Center in Houston, Texas

(“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing

computer-related audits and creating audit summaries and reports. Defendant

McKinney is the Senior Executive Vice-President and Chief Operating officer of

UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and

System-wide Compliance Officer.

In June 2003, Davis learned that the UT System was considering

restructuring certain aspects of the UTHSC-H Internal Audit department and

adding an Assistant Director position. The position was officially announced in

late June. Davis told Sharon Corum, the director of the UTHSC-H Internal

Audit Department and her direct supervisor, that she would like the position.

Thereafter, Corum sought and received permission from human resources and

Dr. James Willerson (“Willerson”), UTHSC-H President, to waive the normal

requirement that a search committee be used to find applicants for the job.

In August 2003, David Healey (“Healey”), UTHSC-H Vice President for

Facilities Planning, approached the Internal Audit department and requested

an audit of his department’s computer systems because he suspected that

employees were viewing pornography on work computers. Davis, with the

assistance of the IT Security department, investigated the computers in the

Facilities department. An expanded UTHSC-H wide investigation began in late

August. The investigation revealed that several computers had accessed

pornographic material and that certain employees had intentionally accessed

pornography. A log of internet activity was developed to establish probable

cause for confiscating computers at the request of Tex Martin, an inspector with

2

No. 07-20184

the UT System Office of the Director of Police. Martin provided the information

to McKinney.

In late August 2003, Davis met with McKinney, Martin and Arline Staller.

At the meeting, Davis presented evidence of 300 or more employees at UTHSC-H

who were accessing pornography. McKinney authorized Davis to confiscate

computers from employees if she had a clear indication that the access was

intentional. McKinney expressed an intent to terminate the employees who had

intentionally accessed the offending material and told Davis to schedule a

meeting with him on September 2, 2003 to discuss the investigation.

After the meeting, Davis engaged IT Security and Information Service

departments for assistance in confiscating computers from UT personnel.

Eleven computers were identified that were believed to have intentionally

accessed pornography. After further investigation, evidence in ten of the eleven

computers strongly indicated that pornography had been intentionally accessed,

including some material that Davis believed to be child pornography.

Davis attempted to meet with McKinney on September 2, 2003, as she had

been directed, but McKinney was unavailable and never responded to Davis’

request to contact her. That same day, Davis received a call from Mike Jimenez,

UTHSC-H Human Resources Manager, asking Davis to return several of the

confiscated computers to physicians. Davis alleges that she heard that

McKinney wished to terminate the investigation, even though her analysis of the

confiscated computers was not complete.

In response to Jimenez’s request, Davis and the rest of the investigation

team worked to copy the hard drives of the confiscated computers so they could

be returned. Directory listings from the computers were provided to Human

Resources. Davis noted that all of the users of the confiscated computers had

signed acceptable use policy forms detailing the restrictions and permissible uses

of the internet on work computers.

3

No. 07-20184

Davis continued the investigation and claims that she provided McKinney

with lists of physicians whose computers contained pornography and included

descriptions of the material that had been accessed. Davis also continued to ask

McKinney to meet with her but he avoided any such meeting. She concluded

that McKinney and others in upper management were turning a blind eye to the

investigation. UTHSC-H physicians perceived the investigation as an intrusion

into their privacy. Davis claims that several employees’ supervisors chastised

her and that a physician sent a demeaning letter about her to McKinney. Davis

also heard that McKinney was accusing her of botching the investigation.

Corum told her that the Internal Audit department was receiving the brunt of

employees’ disdain toward the investigation.

Around September 9, 2003, Davis asked Corum to be taken off the

investigation because she felt it created a hostile work environment and the

requirement that she review repugnant pornographic material denigrated her

as a woman. Davis felt that she was receiving “heat” from other employees and

that management was unresponsive to the findings of the inquiry.

On September 11, 2003, Davis applied for the newly created Assistant

Director position for UTHSC-H’s Internal Audit department. Around the same

time, she sought assistance from the Employee Assistance Program to cope with

the stress of dealing with the pornography and receiving no support in the

investigation from UTHSC-H or the UT System. Davis also contacted the EEOC

about discriminatory behavior of UT’s upper management.

Davis claims that shortly thereafter her work responsibilities were

reduced to mundane tasks. She heard from Corum that upper management,

particularly Chaffin, were pressuring Corum to terminate Davis. Davis also

claims that she heard that McKinney was threatening adverse action against the

Quality Assurance Review team, which Davis had joined years earlier on

Chaffin’s recommendation, if Davis was not terminated.

4

No. 07-20184

On October 12, 2003, Davis wrote a letter to Willerson, UTHSC-H

President, accusing UTHSC-H and UT System upper management of several

unethical and allegedly illegal activities (the “Complaint Letter”). A complete

copy of the Complaint Letter is attached to this opinion as an Appendix. Davis

sent copies of the letter to Corum and Mark Yudof, the UT System Chancellor.

The Complaint Letter alleged that upper management had a pattern of sweeping

pornography investigations under the rug and not terminating or disciplining

offending employees. In the Complaint Letter, Davis detailed the most recent

investigation and complained that McKinney had not taken corrective action.

She also outlined a pattern of treating certain employees, white men, physicians

and faculty members more leniently than black employees. Davis asserted that

in the course of the investigation she, a female, under the direction of males, had

been required to view horrific and deviant pornography that men had been

viewing at work, and then men in supervisory positions excused the behavior.

Davis also stated that as a result of the investigation, her reputation and

credibility had suffered, even though she was doing her job.

The Complaint Letter also alleged that the president was creating an

excessive number of highly paid upper management positions to the detriment

of the division’s budget, demonstrating a pattern of favoritism towards white

men and persons with political influence. Davis stated that she viewed

Willerson’s failure to address the issues brought to him as a dereliction of his

duties to the university, its students, employees, patients and Texas taxpayers.

Near the end of the Complaint Letter, Davis wrote that because she was

no longer confident that the UT System could investigate itself, she had

contacted the Federal Bureau of Investigation concerning possible child

pornography on eight computers and the EEOC about discriminatory practices.1

1

The record does not reveal precisely when Davis contacted these agencies or what she

told them. We can infer from the record that she relayed to the FBI her suspicion that federal

5

No. 07-20184

Willerson responded by outlining his response to the most recent

pornography investigation. Other issues were not addressed.

In November 2003, Davis emailed Corum inquiring about the status of her

application for the Assistant Director position. Corum had previously indicated

to her that Davis was the most likely candidate to be selected for the position

because she was the most qualified. In response to Davis’ inquiry, Corum

advised her that McKinney had frozen the position and it would not be filled.

Davis contends that this action was taken in retaliation for her Complaint Letter

and related reports to the FBI and EEOC. McKinney asserts that he froze the

position because he was considering outsourcing the entire internal audit

function. He also alleges that he and Corum met in September and determined

that if Davis were promoted to Assistant Director, she would still have to

participate in pornography investigations after her request to be relieved from

those duties.

In December 2003, feeling that her termination was imminent, Davis

resigned from UTHSC-H. Davis had been diagnosed with depression and felt

that her workplace conditions had grown so deplorable that she had been

constructively discharged.

In February 2004, the FBI concluded its review of the hard drives of the

ten confiscated computers and found no child pornography.

Davis filed suit in May 2005 against McKinney, individually and in his

official capacity, and Chaffin, individually and in his official capacity.2 Davis

alleges that McKinney and Chaffin violated her civil rights, pursuant to the

laws were being violated by the presence of child pornography on certain seized computers and

that she relayed to the EEOC the charge that UTHSC-H was discriminating against women

and African-Americans in its imposition of sanctions for violations of the University’s internet

use policy.

2

Davis also named the UT System, UT Board of Regents and UTHSC-H as defendants.

The UT entity defendants were dismissed by the district court in October 2005.

6

No. 07-20184

Fourteenth Amendment and § 1983, by retaliating against her for exercising her

First Amendment free speech rights in her Complaint Letter and related

communications to the FBI and EEOC. Davis contends that the defendants

retaliated against her by failing to promote her and thereafter constructively

discharging her from her position at UTHSC-H by subjecting her to a hostile

work environment.

McKinney and Davis filed a motion for summary judgment arguing that

the Complaint Letter was speech made pursuant to Davis’ official work duties

and therefore not afforded First Amendment protections. They also argued that

they are entitled to qualified immunity from all claims asserted against them in

their individual capacities because there is no evidence that they violated Davis’

constitutional rights and their actions were objectively reasonable. The district

court denied the motion. The district court found that the Complaint Letter

“while constituting ‘mixed speech,’ predominantly addresses matters of public

concern, rather than private concern, and that Plaintiff wrote the letter as a

citizen, rather than an employee.” Accordingly, Davis’ speech was protected

under the First Amendment. On the issue of qualified immunity, the district

court found that Davis had raised a genuine issue of material fact regarding

whether she was fired (or constructively discharged) for writing the Complaint

Letter. In addition, the district court found that the defendants’ actions

regarding Davis’ employment at UTHSC-H were not objectively reasonable and

that they were not entitled to qualified immunity. The defendants appeal.

II.

This court does not ordinarily have jurisdiction to review a denial of a

motion for summary judgment. However, the district court’s order denying

qualified immunity is immediately appealable to the extent it turns on a

question of law. Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). This panel

thus has jurisdiction only to determine whether McKinney and Chaffin are

7

No. 07-20184

entitled to qualified immunity as a matter of law, viewing all record evidence in

the light most favorable to the plaintiff Davis. Kinney v. Weaver, 367 F.3d 337,

348 (5th Cir. 2004)(en banc).

To determine whether an official is entitled to qualified immunity,

the court asks (1) whether the plaintiff has alleged a violation of a

constitutional right, and (2) whether the defendant’s conduct was

objectively reasonable in light of the clearly established law at the

time of the incident.

Connelly v. Tex. Dep’t of Crim. Justice, 484 F.3d 343, 346 (5th Cir. 2007). The

threshold question in this case, whether Davis’s speech in the Complaint Letter

is protected under the First Amendment, is a question of law, which we have

jurisdiction to address. Connick v. Myers, 103 S.Ct. 1684, 1691 n.7 (1983).

III.

The defendants argue that the district court erred in denying their motion

for summary judgment in which they asserted that they were entitled to

qualified immunity from Davis’ claims. The defendants argue first that they did

not violate Davis’ First Amendment rights since her Complaint Letter related

to her job duties as an internal auditor at UTHSC-H and did not comment on

matters of public concern.

The First Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen on matters of public concern. Pickering v.

Board of Educ., 391 U.S. 563, 568 (1968). Prior to the Supreme Court’s most

recent pronouncement on the First Amendment rights of public employees in

Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), this court applied

two tests, sometimes in conjunction with one another, to determine

whether speech relates to a public concern; both tests derive from

Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708, 103 S.Ct. 1684

(1983). The first is the content-form-context test: “whether an

employee’s speech addresses a matter of public concern must be

determined by the content, form, and context of a given statement,

8

No. 07-20184

as revealed by the whole court record.” Id. at 147-48; see also

Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994).

The second “shorthand” test is the citizen-employee test:

“when a public employee speaks not as a citizen on matters of public

concern, but instead as an employee upon matters of only of

personal interest,” the employee’s speech falls outside the

parameters of speech involving matters of public concern. Connick,

461 U.S. at 147 (emphasis added); see also Schultea v. Wood, 27

F.3d 1112, 1120 (5th Cir. 1994), superseded on other grounds by, 47

F.3d 1427 (5th Cir. 1995) (en banc). The citizen-employee test can

yield indeterminate results because “the existence of an element of

personal interest on the part of an employee in the speech does not

prevent finding that the speech as a whole raises issues of public

concern.” Dodds, 933 F.2d at 273. Thus, “in cases involving mixed

speech, we are bound to consider the Connick factors of content,

context, and form, and determine whether the speech is public or

private based on these factors.” Teague, 179 F.3d at 382.

Kennedy v. Tangipahoa Parish Library Bd .of Control, 224 F.3d 359, 366 (5th Cir.

2000).

Garcetti changed this analysis in ways not yet fully determined. In

Garcetti, a supervising district attorney, Ceballos, reviewed a case in which

defense counsel claimed the affidavit police used to obtain a critical search

warrant was inaccurate. After determining that the affidavit made serious

misrepresentations, Ceballos relayed that finding to his supervisors via a

disposition memo recommending dismissal of the criminal case. There was no

question in Garcetti that the plaintiff in that case wrote the disposition memo

pursuant to his employment duties. 126 S.Ct. at 1961. Ceballos was required

as part of his job as a prosecutor to write memos such as the one in question to

assess the validity of searches and make recommendations related to the

exercise of prosecutorial discretion. The Supreme Court concluded that the First

Amendment did not protect Ceballos’ expressions in the disposition memo which

were written pursuant to his official duties as an employee. Id. at 1960.

9

No. 07-20184

Because of Ceballos’ concession that he wrote the memo pursuant to his

duties as a prosecutor, the Supreme Court did not have occasion in that case to

“articulate a comprehensive framework for defining the scope of an employee’s

duties in cases where there is room for serious debate.” Id. at 1961. However,

the case provides some guidance, indicating that a formal job description is not

dispositive, id., nor is the fact that the speech relates tangentially to the subject

matter of one’s employment. Id. at 1959. The case also lists examples of

prototypical protected speech by public employees, namely “mak[ing] a public

statement, discuss[ing] politics with a coworker, writ[ing] a letter to newspapers

or legislators, or otherwise speak[ing] as a citizen.” Spiegla v. Hull, 481 F.3d

961, 967 (7th Cir. 2007), citing Garcetti. at 1960, 1961.

While all implications of Garcetti have not been developed at this point,

it is clear that Garcetti added a threshold layer to our previous analysis.

Williams, 480 F.3d at 692. “Under Garcetti, we must shift our focus from the

content of the speech to the role the speaker occupied when he said it.” Id. The

Seventh Circuit has framed the new test in a manner we find persuasive, as

follows:

Garcetti . . . holds that before asking whether the subject-matter of

particular speech is a topic of public concern, the court must decide

whether the plaintiff was speaking "as a citizen" or as part of her

public job. Only when government penalizes speech that a plaintiff

utters "as a citizen" must the court consider the balance of public

and private interests, along with the other questions posed by

Pickering and its successors, such as Waters v. Churchill, 511 U.S.

661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); Connick v. Myers,

461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); and Givhan

v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct.

693, 58 L. Ed. 2d 619 (1979).

Mills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir. 2006). An education

law treatise describes the inquiry similarly as follows:

10

No. 07-20184

The inquiry whether the employee's speech is constitutionally

protected involves three considerations. First it must be determined

whether the employee's speech is pursuant to his or her official

duties. If it is, then the speech is not protected by the First

Amendment. Second, if the speech is not pursuant to official duties,

then it must be determined whether the speech is on a matter of

public concern. Third, if the speech is on a matter of public concern,

the Pickering test must be applied to balance the employee's

interest in expressing such a concern with the employer's interest

in promoting the efficiency of the public services it performs through

its employees. (Footnotes and citations omitted).

Ronna Greff Schneider, 1 Education Law: First Amendment, Due Process and

Discrimination Litigation § 2:20 (West 2007).

Accordingly, our first task is to determine whether Davis’ speech was part

of her official duties, that is whether she spoke as a citizen or as part of her

public job. Because Garcetti is a recent decision, lower courts have had limited

opportunity to interpret it. This circuit has had occasion to apply Garcetti in one

case, Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689 (5th Cir. 2007). In that

case, this court applied the Garcetti analysis to speech that was not necessarily

required by the plaintiff’s job duties, but was closely related to his job duties.

Williams, an Athletic Director, wrote a memo to his school principal and office

manager requesting information about the use of funds collected at athletic

events, including negative remarks about how the school allocated those funds.

After reviewing pre- and post-Garcetti caselaw, we concluded that the cases

“distinguish between speech that is ‘the kind of activity engaged in by citizens

who do not work for the government and activities undertaken in the course of

performing one’s job.’” Id. at 693 (internal citation to Garcetti omitted).

Activities undertaken in the course of performing one’s job are activities

pursuant to official duties and not entitled to First Amendment protection. Id.

We found that Williams wrote the memo in the course of performing his job

because he needed account information from the principal and office manager

11

No. 07-20184

so that he could perform his duties as Athletic Director, namely, taking students

to tournaments and paying their entry fees. Id. at 694. His memo reflected his

special knowledge about the situation gained as athletic director. In addition,

his comment that the principal had established “a network of friends and house

rules,” for use of these funds related to his concerns about his athletic program.

Cases from other circuits are consistent in holding that when a public

employee raises complaints or concerns up the chain of command at his

workplace about his job duties, that speech is undertaken in the course of

performing his job. Spiegla, 481 F. 3d at 966 (Correction officer’s reports to

assistant superintendent of the prison in which she worked regarding a possible

security lapse which occurred at her assigned position at the main gate was part

of her official responsibility as a correction officer to keep the prison secure.);

Battle v. Bd. of Regents, 468 F.3d 755, 761 (11th Cir. 2006)(University employee’s

internal report which alleged improprieties in her supervisor’s handling of

federal financial aid funds was made pursuant to her official employment

responsibilities as a financial aid counselor.); Foraker v. Chaffinch, 501 F.3d 231

(3d Cir. 2007)(Instructors at Delaware State Police Firearms Training Unit were

acting within their duties as employees by bringing health and safety concerns

about the range up the chain of command and to the state auditor.)3

If however a public employee takes his job concerns to persons outside the

work place in addition to raising them up the chain of command at his

workplace, then those external communications are ordinarily not made as an

employee, but as a citizen. Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006). In

Freitag, the plaintiff was a corrections officer at the Pelican Bay State Prison in

3

We recognize that it is not dispositive that a public employee’s statements are made

internally. Williams, 480 F.3d at 694, n.1., citing Garcetti and Givhan v. Western Line

Consold Sch. Dist., 439 U.S. 410 (1979). However, as illustrated above, the caselaw is

unanimous in holding that employee’s communications that relate to his own job function up

the chain of command, at least within his own department or division, fall within his official

duties and are not entitled to First Amendment protection.

12

No. 07-20184

California. She encountered a pervasive practice of male inmate exhibitionist

behavior directed at female officers, including herself personally, over a period

of several months. Id. at 532. Freitag’s complaint alleged that she was

retaliated against and ultimately terminated due to her repeated complaints

about the problem. Id. The court listed six examples of Freitag’s speech on the

subject: (a) reports to agents of the California Department of Corrections within

the Pelican Bay State Prison, formally and informally; (b) documenting Pelican

Bay State Prison’s responses or failure to respond to her reports of sexually

hostile inmate conduct; (c) informing the Director of the California Department

of Corrections of the prison’s failure to respond; (d) informing a State Senator of

the inmate conduct and the prison’s failure to respond; (e) reporting the same to

the Office of the Inspector General; and (f) cooperating with the investigation

conducted by the Office of the Inspector General. Id. at 544. As to items (d), (e)

and (f), the Ninth Circuit found that Freitag was acting as a citizen when

making those communications. “Her right to complain both to an elected public

official and to an independent state agency is guaranteed to any citizen in a

democratic society regardless of his status as a public employee.” Id. at 545. “It

was certainly not part of her official tasks to complain to the Senator or the IG

about the state’s failure to perform its duties properly.” Id. In contrast, her

communications within the prison internally, in (a) and (b) above, were pursuant

to her official duties as a correction officer and thus not in her capacity as a

citizen. With regard to item (c), the Ninth Circuit was “unsure whether prison

guards are expected to air complaints regarding the conditions in their prisons

all the way up to the Director of the CDCR at the state capitol in Sacramento”

and remanded the case to allow the district court to make that determination.

Id. at 546.

The communications in this case require a similar analysis - that we look

at Davis’ role both when she sent the Complaint Letter and when she

13

No. 07-20184

communicated with the FBI and EEOC. As in Freitag, the Complaint Letter

was sent not just up Davis’ chain of command to Dr. Willerson, the President of

UTHSC-H, where Davis was employed, and to Sharon Corum, her immediate

supervisor. Davis also sent copies to Mark Yudof, Chancellor of the UT System.

Davis also complained to external, unrelated entities. She contacted the FBI

concerning the possible child pornography she found and the EEOC on the

discriminatory practices.

With respect to the content of the Complaint Letter, some of it clearly

relates to Davis’ job as an internal auditor, other parts do not. Davis’ Complaint

Letter has two main topics. The first topic concerns complaints about what she

considered the inadequate response to her investigation of employees accessing

pornography on university computers, including claims that the university

ignored possible criminal activity and engaged in racial discrimination in its

imposition of sanctions for computer use violations. The second topic is Davis’

complaints about the number and pay of executive vice presidents and vice

presidents at UTHSC-H, raising issues of political favoritism and fiscal

mismanagement, and the effect of these practices on employee morale.

In “mixed” speech cases, Freitag supports analyzing separately each aspect

of a communication with multiple topics and recipients. Pre -Garcetti case law

also supports analyzing mixed speech in a single communication by dividing the

communication by topic and applying First Amendment analysis to each topic

separately. In Connick v. Myers, an assistant district attorney unhappy with a

proposed transfer to another department, circulated a survey to “fellow staff

members concerning office transfer policy, office morale, the need for a grievance

committee, the level of confidence in supervisors, and whether employees felt

pressured to work in political campaigns.” 461 U.S. at 141. The Court viewed

most of the topics in the survey as private matters, “mere extensions of Myers’

dispute over her transfer to another section of the criminal court.” Id. at 148.

14

No. 07-20184

The Court treated differently, however, the aspect of the survey that questioned

whether the staff felt pressured to work in political campaigns on behalf of office

supported candidates. The Court concluded that this speech raised a matter of

public concern. Id. At 149. Although Connick dealt with distinguishing matters

of public concern from matters of private concern and not whether the speech

was made as part of an employee’s official duties, which is the issue in this case,

we believe that it can be read as support for considering separately discrete

topics within a single communication for purposes of applying post-Garcetti First

Amendment analysis.

Dividing Davis’ speech, both in the Complaint Letter and in her other

communications, into components as the Ninth Circuit did in Freitag discloses

the following components:

(a) concerns about the inadequate response to Davis’ pornography

investigation for the internal audit department directed to Dr. Willerson,

president of UTHSC-H, and to Sharon Corum, Davis’ immediate

supervisor;

(b) concerns about the excessive number and pay of vice presidents directed

to Dr. Willerson and Sharon Corum;

(c) concerns about the inadequate response to Davis’ pornography

investigation for the internal audit department directed to Mark Yudof,

Chancellor of the UT System;

(d) concerns about the excessive number and pay of vice presidents directed

to Mark Yudof, Chancellor of the UT System;

(e) concerns about the presence of possible child pornography on UTHSC-H

computers directed to the FBI;

(f) concerns about racial discrimination at UTHSC-H directed to the EEOC.

The district court did not discuss the individual components of Davis’ speech

listed above or consider whether each category of speech was related to plaintiff’s

15

No. 07-20184

job duties. Instead, it treated the Complaint Letter and other communications

as a whole. However, because the question of whether a communication is made

as an employee or as a citizen is a question of law, we proceed with the analysis.

Item (a) above was clearly made as an employee. Although Davis had

requested that she be removed from further pornography investigations, the

letter related to her work within the internal audit department and to her core

job description, “to oversee computer-related audits and create audit summaries

and reports.” The communication was sent to her immediate supervisor, Sharon

Corum, and the President of her division of the UT System, in other words, up

the chain of command seeking redress for what she felt was an inadequate

response to the findings of her investigation.

In contrast, item (b), the portion of her letter dealing with the number of

vice presidents and related issues, was not written as part of her job duties as

a internal auditor. The topic does not relate to computer use or the internal

audit department specifically. There was no financial component to Davis’

position. Accordingly, that communication was made as a citizen.

Item (c), the Complaint Letter to the Chancellor of the UT System, is more

difficult. It is comparable to Freitag’s complaints regarding conditions at the

prison to the state director of prisons. Speech related to an employee’s job duties

that is directed within the employee’s chain of command is not protected. The

question is how high within an organization an employee’s reporting

responsibilities extend. Fortunately, our review of the record reveals that

Chancellor Yudof was indisputably within Davis’ chain of reporting

responsibilities on internal audit issues. The UT System is made up of nine

academic universities and six health institutions. The UTHSC-H division for

which Davis worked is one of the six health institutions under the UT System.

The record includes the following information about reporting within the UT

16

No. 07-20184

System and by the audit departments in particular. Defendant Chaffin stated

in an affidavit

To provide for the independence of the Internal Auditor function,

auditors at the U.T. System component institutions do not report to

U.T. System but report directly to the administration of their

component institution as provided by the University of Texas

System Business Procedures Memorandum 18.

Memorandum 18 states that in “Large Institutions” like the UTHSC-H with

freestanding internal audit departments, the audit departments report to the

president of the institution and meet with their institution’s internal audit

committee at least quarterly. Reports from the audit committee are submitted

to the Executive Vice Chancellor for Academic or Health Affairs and the System

Audit Director. Audit reports with significant audit findings and

recommendations are summarized for the Audit, Compliance, and Management

Review Committee. The chancellor attends meetings of the Audit, Compliance,

and Management Review Committee and provides direct communication

between the System Audit Director, the committees and senior management.

Memorandum 18 states that the chancellor is “Responsible for insuring the

implementation of appropriate audit procedures for the system.” Davis viewed

Chancellor Yudof as being in the chain of her reporting responsibilities as an

internal auditor. In her deposition, she was asked if she had ever gone over the

head of Dr. Willerson, president of her division, to report that McKinney was

trying to stop her investigation. Davis answered that she had not. However,

when asked to whom she would have gone, she answered, “I would have gone to

Mr. Yudof.” Accordingly, we conclude that Davis’ communication of her

complaints about the handling of internal audit investigations at UTHSC-H to

the Chancellor of the UT System was made as an employee.

17

No. 07-20184

In contrast, her complaints to Chancellor Yudof relating to the number of

vice presidents and related concerns, item (d), have nothing to do with her job

function as an internal auditor and therefore were made as a citizen.

Items (e) and (f), the reports to the FBI and EEOC, were not made as an

employee. Defendant Chaffin testified at his deposition that it was not within

an auditor’s job function to communicate with outside police authorities or other

agencies in an investigation. Davis’ supervisor Corum testified that it was

highly unusual for an auditor to involve any outside authority with respect to

matters occurring at UTHSC-H and she could not recall it ever happening in her

12 years with the division. This communication is comparable to Freitag’s

communication to a State Senator and the State Inspector General.

Those aspects of Davis’ communications that were made as a citizen

qualify for First Amendment protection if they raise a matter of public concern.

The district court found that “the confluence of factors surrounding Plaintiff’s

Complaint Letter militate in favor of a finding that the letter, while constituting

‘mixed speech,’ predominantly addresses matters of public concern, rather than

private concern.” Although the defendants mention both aspects of the test in

their brief to this court - citizen vs. employee and public vs. private concern -

their argument focuses solely on whether Davis’ speech in the Complaint Letter

was made as an employee rather than as a citizen - not whether it raised

matters of public concern. Other than stating that the Complaint Letter does

not raise matters of public concern, the Defendants do not brief the issue

separately and do not discuss at all whether communications to the FBI or

EEOC raise matters of public concern. On remand, the district court after

briefing by the parties should consider whether the aspects of Davis’ speech we

have concluded are not job related raise issues of public concern. To the extent

any category of speech raises matters of public concern, the district court should

18

No. 07-20184

apply the Pickering balancing test to such speech and deny or grant summary

judgment based on its conclusions.

IV.

Both McKinney and Chaffin argue that the district court erred in denying

them qualified immunity from all claims asserted against them in their

individual capacities because their actions were objectively reasonable.

Evaluating a claim for qualified immunity is a two-step inquiry. First, a court

must decide whether the plaintiff’s allegations, if true, establish a violation of

a clearly established right. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.

1998)(en banc). Second, if the plaintiff has alleged a violation, the court must

decide whether the conduct was objectively reasonable in light of clearly

established law at the time of the incident. Id. Even if the government official’s

conduct violates a clearly established right, the official is entitled to qualified

immunity if his conduct was objectively reasonable. Id.

McKinney and Chaffin challenge the district court’s conclusions on the

second prong - that their actions were not objectively reasonable. At the time of

the alleged violation of Davis’ free speech rights, both Supreme Court and Fifth

Circuit law clearly proscribed retaliation by a government employer against an

employee for engaging in protected speech. Pickering, 391 U.S. at 568; Connick,

461 U.S. at 146-47; Teague v. City of Flower Mound, 179 F.3d 377, 380-82; Davis

v. Ector County, Tex, 40 F.3d 777, 782 (5th Cir. 1994).

Chaffin argues that he was a UT System employee with no direct

supervisory authority over Davis and her supervisor Corum who were employed

at UTHSC-H. Chaffin also argues that an unexecuted threat of termination is

not an adverse employment action that could support a § 1983 First Amendment

retaliation claim. Davis pled that Chaffin had actual authority over employment

decisions at UTHSC-H, and supported that allegation with deposition testimony

of herself and her supervisor Corum. In addition, Davis alleges constructive, not

19

No. 07-20184

actual, termination, negating Chaffin’s argument about the effect of an

unexecuted threat. The district court found that Davis presented evidence

raising a genuine issue of material fact as to whether Chaffin retaliated against

Davis for the speaking out on the issues presented in the Complaint Letter.

Chaffin’s arguments challenge Davis’ versions of the events, raising questions

of fact which we have no jurisdiction to consider at this time.

McKinney argues that his actions freezing the hiring for the position of

Assistant Director of audit were objectively reasonable because he was

considering outsourcing the entire Audit Department or other reorganization

options. He also argues that this action was objectively reasonable because

Davis asked to be relieved of viewing pornography and reviewing pornography

investigations was part of the job duties of the proposed Assistant Director of

Audit position. Again, these arguments challenge Davis’ version of the facts.

Davis produced evidence that McKinney, who presided over Davis’ pornography

investigation, never viewed the pornography found on the department’s

computers. The district court found that there was a genuine issue of fact with

regard to McKinney’s motivations for freezing the position. As these arguments

raise questions of fact, we have no jurisdiction to consider them at this time.

V.

Accordingly, for the reasons set forth above, we reverse the district court’s

denial of summary judgment in part on the issue of whether Davis’ speech was

entitled to First Amendment protection insofar as it relates to those aspects of

Davis’ speech that were made as an employee, rather than as a citizen. The

district court’s judgment is affirmed in all other respects and this case is

remanded for further proceedings consistent with this opinion.

AFFIRMED in part. REVERSED in part. REMANDED.

20

No. 07-20184

APPENDIX

MEMORANDUM

TO: Dr. Willerson, President

University of Texas Health Science Center at Houston

FROM: Cynthia M. Davis, IT Audit Manager

University of Texas Health Science Center at Houston (UT-Houston)

DATE: October 12, 2003

SUBJECT: UNETHICAL AND POSSIBLE ILLEGAL ACTIVITIES at UT-Houston

[Ms. Davis first describes the requires for her to investigate the use of state computers

to view pornography. She then reviews the procedures she followed, and finally

describes some of her findings. The letter continues as follows:]

The University continues to perpetuate a hostile working environment with its pattern

of not handling pornography..

• Nothing was done in 1999 when a Family Practice physician was

discovered to have child pornography on his computer. No reports were

filed, the AMA was not alerted and the physician was allowed to resign

with no sanctions whatsoever.

• Nothing was done in 2000 when I discovered and reported a faculty

member producing pornographic videos of himself masturbating in his

office and trafficking it on the Internet.

• In 2000, three young, black classified employees were terminated within

weeks that the faculty member was investigated and unsanctioned.

• a highly visible white classified male was not terminated when it was

discovered that he viewed pornography at work.

• in the most recent audit, 10 men were discovered viewing pornography,

eight of them with possible child pornography on the computers, and the

investigation has been stopped with no explanation, even after I told my

superiors much of the information above and my complete disgust with

the University’s approval of such behavior.

21

No. 07-20184

I am unable to perform my job without interference from management. My role is no

longer effective at the University. In the case of [one physician], I received a memo

directed to McKinney by [another physician] attacking me for doing my job. His

excuses for [the first physician] are baseless and I am told that McKinney has

responded to the letter, although I have not been provided a copy.

Once again, executive management has taken no definitive action against employees

who use state resources to view pornography for personal purposes. Since little to

nothing is done, I have been repeatedly subjected to pornographic material that

degrades women and children. This has created a hostile working environment for me

because my efforts go unsupported. Men viewed the pornography, men requested the

investigation, I a female, was the only employee ordered to view the material, and men

excused the behavior of their colleagues.

Once the decision was made to not terminate any of the employees, the focus of

attention was switched from the real problem of employees viewing pornography to the

investigation itself. I personally have been blamed for a “botched” investigation

although procedures were correctly followed and decisions were made by Martin and

McKinney. Neither of these men made any attempt to correct the misperception (and

appear to be propagating it) nor gave me the opportunity to respond to these

allegations.

Despite evidence that child pornography was accessed, the investigation was stopped

with no explanation. I opted out of doing further investigation because the University

forces me to view pornography, has taken no action to remedy the problem, and now

appears to just want to sweep it under the rug.

Research at our own School of Public Health linking pornography to deviant behavior

should increase the desire of the University management to diligently investigate

these cases and take strong action. Management consistently protects the perpetrators

and ignores the rest of those that put their trust in this the University – students and

patients.

The University’s continuing track record of ‘doing nothing” implicitly endorses the use

of state resources for unsavory and possibly illegal activity. The University posts

policies about this kind of behavior but when their colleagues are actually caught

violating the policy they defend them by saying that they weren’t explicitly told not to

view pornography at work. We trust them to educate our future health care

professionals and treat patients, they are outstanding researchers discovering cures

for disease but they don’t know that they shouldn’t view pornography at work?

You should know that I selected only a very small sample of persons that view

pornography at the University, the problem is much greater than 10 people. I have

Internet logs which were run on 9/3/2003 which show a much greater population. You

22

No. 07-20184

should review the material on these computers so you know how horrific this is. Most

material is actual videos of sexual intercourse, some deviant, most of women and

young girls being violated. I gave McKinney the evidence, he ignored it and instead

turned the attention to me as an excuse for not dealing with the real issue which is

terminating employees for regularly viewing pornography.

My reputation has suffered significantly since this investigation, my credibility has

been questioned and my ability to continue to be effective at the University is serious

damaged because I chose to perform my job duty at the direction of UT system and

McKinney. I have even been forced to obtain help from the Employee Assistance

Program (EAP) as a result of all of this. I would have continued to seek help from EAP

but realized I can longer trust the University to protect my rights. I believe the

University would use the emotional problems I was experiencing as a result of this

investigation against me. I am seeking help elsewhere.

It has become quite clear to me that neither you or McKinney take Auditing &

Advisory Services, Legal or Compliance seriously and the “new” management method

is to either promote and pay exorbitant salaries for silence or terminate those that

don’t agree with you. It should be noted that many of the staff and VPs you terminated

were the Chief Legal Officer, Chief Compliance Officer and one-half of the Audit

department. Since McKinney is currently admonishing Auditing for the pornography

investigation, it appears that the remaining Audit department is now being

scrutinized!

It has also been noted that you removed all external members from the Audit

Committee. These actions create the appearance that the University has things to hide

and doesn’t wish to involve outside parties, is not concerned about complying with

laws, regulations and does not feel terribly responsible for protecting taxpayer’s assets.

Ignoring advice from legal, audit and compliance is endangering the reputation of the

University and appears to be ignoring the rights of all employees, students and

patients.

This pattern of behavior is very disturbing. Besides the fact that you appear to

condone male physicians and male employees’ viewing of pornography using state-

owned resources, it appears that you show favoritism towards white men and persons

that can help you politically. The number of executive vice president’s and vice

president’s you have placed at the University is now up to eleven(11). I have looked

into the matter and can’t see what help these appointments provide, other than

political favoritism. Also, I am unable to find another UT component that has close to

this amount of vice presidents. I, among most of the University, don’t understand how

creating executive positions and paying them large sums of money contributes to an

efficient and cost-effective administrative structure for the University. The

appearance that McKinney created his own senior executive position and demands

well in excess of a one-half million dollar salary is revolting. The additional fact is that

23

No. 07-20184

two minorities in the President’s office used to hold executive positions but are now

simply vice presidents. These are the facts and it does not look good.

It is apparent that you have an agenda to fulfill the University’s mission in education,

research and service. What is not apparent is how overpaying executives is

contributing to this mission. It would be extremely helpful if you would provide

performance measures for the executive positions and other positions like [one specific]

position. Perhaps explaining to the rest of the University and tax payers how these

executives contribute to the growth of the University and generate revenue that

exceeds their administrative costs, would further your cause more effectively than

telling us at Management Forum that if we aren’t in sync with your vision we can just

leave. That speech is not only arrogant but extremely demoralizing. It should be no

surprise why our SECC campaign is at an all-time low. This is the true reflection of

how your employees feel about this University.

The view of the University and its current management is extremely negative. My

experience is that your employees have lost faith in the University’s ability to be equal

and just. I believe you have the power to change that view by proving that what you

are doing is ethical and responsible. Perhaps we just don’t understand that it takes

more executive vice presidents to achieve your mission. All we see is layoffs of

classified staff, discriminatory practices, the protection of men viewing pornography

and elevating white men to high paying executive positions.

You have a legal, moral and ethical obligation to the University and the citizens of

Texas. Auditing, Legal and Compliance are here to assist you minimize risk to this

University and even your reputation. Your refusal to address the issues brought to

you, even if they are “about” you is a dereliction of your duties and appears that you

don’t take those obligations seriously.

Our employees, students and patients deserve to work, learn and be treated in a safe

environment. The state of Texas taxpayers deserve to know that the money they give

us is used thoughtfully and honestly. The patients that come to use for care deserve

to know that the treatment we provide is provided by men and women who have high

ethics and would not behave in any way that would endanger their safety. The

taxpayers deserve to know the truth about unethical behavior at the University which

occurs at their expense.

Since I am no longer confident that the University can investigate itself, I have

elevated my concerns to external agencies in the hope that this institution can be

restored to a place of integrity and honor. I have contacted the Federal Bureau of

Investigation (FBI) concerning the possibly child pornography on the eight computers

and I have contacted the Equal Employment Opportunity Commission (EEOC) on the

discriminatory practices. Nothing has happened yet with these agencies except

dialogue, but it is my sincere desire that you work with them to return the University

to a place of integrity, honor, fair treatment of all of its employees, and ethical, moral

24

No. 07-20184

physicians and men who are not endangering women and children because they are

allowed to view pornography using state-owned resources.

I honestly believe that you will alter your behavior and do the right thing because I

think you take a lot of pride in your position and you do believe in the mission of the

University. There are many misconceptions and the appearance of unethical and

illegal activities being sanctioned by you and only you have the power to change that.

I look forward to working with you and these agencies to make the University the best

University in the world and a place to be proud of!

I would like to meet with you and Chancellor Yudof at the earliest opportunity to

explore these issues. Please let me know when we can meet.

Cc: Sharon Corum

Mark Yudof

25